Boro v. Superior Court

Brief Fact Summary.

Defendant Boro induced the victim into having sexual intercourse with him by purporting that the victim contracted a life threatening disease and her only options were either an expensive surgery or for the victim to have sex with a prospective donor who would be injected with the cure of the disease.

Synopsis of Rule of Law.

The act of rape committed through fraud in inducement will not nullify the consent of the victim, but rape committed through fraud in the factum does nullify consent.

Facts.

The Defendant Boro called the victim on the phone claiming his name was “Dr. Stevens” and he alleged to have in his possession results from the victim’s blood test. He told her that she had contracted a life threatening disease that she has one of two options, either she could pay $9,000 for surgery or $4,500 to have sexual intercourse with an anonymous donor who would be injected with a serum that would cure her disease. The victim could only afford a down payment of $1,000, which Boro accepted, and arranged a meeting at a hotel with the victim, where Boro and the victim proceeded to have sexual intercourse. The victim testified at trial that she only had sex with Boro based on the false belief that her life depended on it. Boro was charged wit rape, stemming from the fact the sexual intercourse and consent was acquired with the victim being unaware of the nature of the act.

Issue.

Whether sexual intercourse obtained through fraud in the inducement will nullify the consent of the victim?

Held.

No, only sexual intercourse obtained via fraud in the factum will nullify consent but not fraud in the inducement.

Discussion.

Fraud in the inducement is when the fraud does not relate to the fact itself but only relates to the way in which the fraud is ultimately achieved. The statute which Boro was charged under defines rape as intercourse with a victim, the nature of which the victim is unconscious of. Boro only misrepresented that the victim would die if she did not have sex with him, but did not misrepresent the fact that he and the victim would be having sexual intercourse. Boro induced the victim into having sexual intercourse by misrepresenting that she would die if she did not, but did not misrepresent the fact that they would engage in sexual intercourse, as opposed to fraud in the factum where the defendant would misrepresent that he and the victim would be having sex. For example, a patient who consents to a medical procedure where the doctor has them lean over a table to insert a metal instrument for medical purposes, but subsequently substitutes his penis for the instrument.